Schools start to rethink zero tolerance policies

It started with a snowball, tossed from a group of high school students playing in the first snowfall of winter.

The snowball ended up hitting a teacher standing about 20 yards from the group.

It was a seemingly innocent act, one that the teacher might have laughed off.

Instead, the teen faced a severe penalty: expulsion.

Fortunately for Jennifer Payne’s client, the snowball caper was caught on camera.

“It wasn’t his snowball, and thank god that was caught on video surveillance tape,” says Payne, a supervisory attorney with the Legal Assistance Foundation of Metropolitan Chicago. “Another person in the group did lob the snowball in the direction of the teacher, and it did hit the teacher on the shoulder. It was light, fluffy snow—not an ice ball. And nobody was injured.” The student won the expulsion hearing and returned to school.

Illustration by Etienne Delessert.

Payne’s office handles about 25 such hearings a year from Chicago and its suburbs. She also represents clients referred for expulsion on suspicion of drug use when no drugs were found but school personnel reported students “looked like they were high” or “smelled like pot,” she says.

Other clients have faced expulsion after being falsely accused of participating in a fight, Payne says, or not walking away from watching a fight when directed to by school staff.

While student discipline problems have plagued schools for years, many lawyers say zero tolerance-like policies at schools have outlived their usefulness and may in fact be doing more harm than good.

There is no evidence, for instance, that zero tolerance policies—which mandate automatic punishment, such as suspension or expulsion, for infractions of a stated rule—have done anything to decrease school violence. Evidence is mounting, however, that extreme disciplinary reactions are resulting in higher rates of repeat offenses and dropout rates.

Moreover, the once-politically popular policies may have reinforced a perception that school violence has increased, forcing schools to have on-campus law enforcement whose presence can magnify both the number and seriousness of offenses. Lawyers complain that these officers, referred to as school resource officers, often lack sufficient training, leading to more arrests—sometimes for infractions as minor as flatulence or dress code violations.

The result is a backlash against zero tolerance, with some schools beginning to turn away from such rigid punishments. Instead they are directing their efforts toward creating positive school environments and devising creative approaches to discipline problems.

“The term zero tolerance may be overused. It’s more of an intolerance,” says Daniel Losen, director of the Center for Civil Rights Remedies, part of an initiative of the UCLA Civil Rights Project. Much of Losen’s work focuses on the funneling of children from school to the juvenile and criminal justice systems. Losen co-authored a book on the subject, The School-to-Prison Pipeline: Structuring Legal Reform, published in 2010.

Zero tolerance school-discipline policies became popular in the 1980s, fueled by both President George H.W. Bush’s war on drugs and the broken windows philosophy, which holds that cracking down on lesser crimes prevents bigger ones. Also leading to the policies was the 1994 Gun-Free Schools Act, which requires schools to suspend students who bring firearms to school for one year or lose all federal funding.

According to an American Psychological Association task force on zero tolerance, there’s no evidence that the tactic increases discipline. In a 2008 report, the group found that there are many misconceptions around the effectiveness of zero tolerance in schools. School violence has remained stable since the mid-1980s, the report says, and schools with higher suspension and expulsion numbers had less satisfactory ratings of school climate.

Even the U.S. Department of Education is casting doubts on zero tolerance. A DOE report issued in January notes that reactions such as suspension predict a greater possibility of misbehavior. The report further agrees with the APA in challenging the notion that “swift and certain punishments of zero tolerance” have a deterrent effect on students and improve their behavior.

“Some people have bought into this notion that you have to be really harsh to be in control. In that situation you might have to use a lot of fear to keep control, and that kind of environment is not really healthy for kids,” says Losen, who works out of Lexington, Massachusetts.

The report encourages schools to create positive climates with evidence-based prevention strategies for discipline. It specifically mentions setting clear expectations and using Positive Behavioral Interventions and Supports, a framework for behavioral guidance and social culture focused on emotional needs and academic success.

With PBIS, all school personnel and students are taught appropriate behavior, Losen says, so there’s a framework for improving students’ conduct. Students also are encouraged to take ownership of behaviors that can be problematic in a school setting. But unlike more antiquated methods of maintaining order—such as writing the names of misbehaving students on the chalkboard—kids are asked to think about what they did, what their actions were trying to accomplish and who their actions may have hurt.

The PBIS approach often asks students to think about how they will do things differently in the future and to consider how their actions affect everyone.

The Department of Education report states that students should be removed from the classroom “only as a last resort.” The report points to research that shows attempting to maintain order through suspensions fails to improve safety or learning environments at schools.

“Old school” ways of maintaining order, including out-of-school suspensions and expulsions, don’t work anymore, says Beverly Hutton, a former school principal who now serves as director of professional education with the National Association of Secondary School Principals. Today’s students are more informed and savvy.

“They don’t comply just because you tell them to. They want information and they want to understand why,” she adds. “A school where kids are valued and teachers are appreciated is much more orderly than a place where the principal rules with an iron fist.”

The American Bar Association opposes zero tolerance school discipline policies. In 2012, then-ABA President Laurel Bellows asked the U.S. Judiciary Committee’s civil rights subcommittee to end the criminalization of truancy, disability-related behavior and other school conduct. The ABA’s Coalition on Racial & Ethnic Justice hosted Chicago town hall meetings about the school-to-prison pipeline in February and June. Future town halls are planned for Boston, Miami and Tempe, Arizona.

Much of the criticism against zero tolerance policies is that they target black students. In Chicago, for example, while blacks make up 41.3 percent of the city’s public school students, they account for 71 percent of expelled students. Nationally, black students are more than three times as likely to be suspended or expelled, according to the January DOE report.

Between the start of fiscal year 2013 and April 16, 2014, the agency’s Civil Rights Division had received 693 complaints alleging discrimination in school discipline, according to a DOE official. At the time, the agency was investigating 131 school discipline complaints.

One complaint filed in January alleges that the Wake County, North Carolina, public school system, as well as agencies that supply the district with school resource officers, “unnecessarily and unlawfully punish and criminalize minor misbehaviors and disproportionately harm African-American students and students with disabilities.”

According to the complaint, the school district and police agencies’ actions violated Title IV of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, sex, religion or national origin in public schools. It also alleges violations of Section VI of the law, which holds that public funds cannot be spent on practices that encourage or subsidize discrimination based on race, and Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination against someone based on his or her disability.

The complaint was filed by Legal Aid of North Carolina’s Advocates for Children’s Services and other groups, including Losen’s Center for Civil Rights Remedies.

In June, the Wake County Public School System released a memo of understanding, which states that school administrators have the sole responsibility for implementing the student code of conduct and discipline policies. It notes that officers must work closely with school administrators, only use appropriate force and attend annual training programs.

The document is “a welcome revision,” ACS said in a statement. Still, the agency believes more needs to be done. There are no meaningful limits on the discretion of school resource officers, nor are there mandates about appropriate parental notification when police intervention occurs, according to the statement. The agency also complains that the memo does not create a “meaningful, accessible” complaint process, or opportunities for ongoing parent, student and community engagement in monitoring the school resource officers.

North Carolina’s school discipline statute prohibits zero tolerance policies. But many Wake County schools have not done away with such practices, according to Jason Langberg, supervising attorney for Advocates for Children’s Services. He mentions Southeast Raleigh High School, where 70 percent of the student body is black, and 43 percent of the students qualify for free or reduced-cost lunch. In 2011, according to statistics from the Department of Education’s Office for Civil Rights Data Collection, of the school’s enrollment of 1,698, there were 329 in-school suspensions and 298 out-of-school suspensions. OCR data show that a comparable Chicago high school, with 1,624 students, showed no in-school suspensions and 107 out-of-school suspensions.

“There’s a real tension there—from hostility, fear and chaos. That breeds a heightened level of anxiety that results in fights,” Langberg says, adding that it’s not entirely the school’s fault that students fight because the students also have some responsibility for their actions.

“Still,” he adds, “the school has the opportunity to remove some of the school resource officers who are bad actors, and relieve tension through better practices.”

A student listed in the complaint, identified as T.S., was handcuffed and ultimately suspended for cutting in front of someone in a lunch line. A school resource officer reportedly grabbed the boy, 16, by the arm. The boy pulled away, and the officer pulled his arm behind his back and handcuffed him in front of other students. T.S. had an individualized education plan for oppositional defiant disorder, a childhood disorder that includes a pattern of disobedient and hostile behavior toward authority figures. Under state and federal law, Langberg says, students with ODD fall under the “serious emotional disability” area of special education services.

According to the complaint, the boy has been successful working with counselors to improve his social skills. Yet he sat in handcuffs for about 20 minutes. When his mother picked him up, no one mentioned that her child had been cuffed.

After coming back from a three-day suspension, a group of students assaulted T.S. According to the complaint, the school resource officer shot pepper spray directly into the boy’s face while he was lying on the ground, handcuffed him again and made him sit on the curb.

In a separate incident, a student identified as J.H. was removed from class by the school principal. The student, then 14, waited about an hour in a room by himself without knowing why. Requests to call his mother were denied, according to the complaint. His phone was also confiscated. The principal and officer questioned J.H. about a video on the phone of him and a friend fighting. Both boys said it was play. J.H. was accused of being in a gang, which the complaint describes as a “baseless allegation.” He’s described as a good student who “exudes a friendly and warm energy.”

J.H. received a 10-day suspension with a recommendation for a long-term suspension due to “gang affiliation.” J.H. successfully appealed the suspension with the district’s hearing panel.

On his first day back, a group of football players approached J.H. and “asked him questions aggressively.” One appeared ready to fight J.H., the complaint says, and they were separated by the school resource officer and a security guard.

After saying he did not want to fight, according to J.H., the officer’s response was: “Back again, I see. You couldn’t even last one day. I swear if you were 16, I’d take you down.” North Carolina treats people 16 and older as adults, regardless of what led to the arrest.

His father had directed J.H. to call if he had more school problems. When he did, the officer entered the room and “aggressively” demanded that the boy get off the phone. As described in the complaint, “J.H. said, ‘I’m talking to my dad.’ The officer lunged at J.H., yelling, ‘Get off the phone!’ The SRO grabbed J.H.’s arm, twisted it behind his back, and pushed J.H. into a table. Nothing like this had ever happened to J.H. before and J.H. was terrified of what the officer might do to him in a closed room, so he tried to get out of the room. He got to the hallway when the SRO grabbed him again, twisted his arms behind his back, slammed him against a wall, and handcuffed him.”

The officer filed a delinquency complaint against J.H., alleging simple affray and resisting a public officer. A juvenile court counselor declined to go forward with charges but did place J.H. in an alternative program.

The experience caused J.H. to fear the school, according to the complaint. He now attends a different one, farther from his home. His mother spends two hours a day taking him there and back.

When asked for a response, the Wake County Public School System’s director of public relations sent a statement to the ABA Journal, noting that it was reviewing the complaint.

The complaint also mentions Apex High School, located in a Raleigh suburb. At the school, 73.6 percent of the students are white, while 7.8 percent are black, according to the Department of Education’s Civil Rights Data Collection. However, the percentage of blacks receiving in-school suspensions is almost 10 times the percentage of whites, the data show.

Jody Owens II, the managing attorney and director of the Southern Poverty Law Center’s Mississippi office in Jackson, finds the school’s suspension numbers troubling. “If it’s not discrimination, it’s at least an example of the inequality that exists in the discipline of kids of color,” he says. “The unwritten policy is that black kids are bad students. But if we look at patterns and practices, we see that black students are disciplined at an alarming rate.”

The Apex Police Department is one North Carolina law enforcement agency named in the complaint. Police Chief John Letteney says none of the alleged incidents listed occurred with his officers.

“Yet all law enforcement agencies in Wake County with school resource officers are painted with that broad brush that this is a districtwide problem,” Letteney says. “I understand the concerns that gave rise to the complaint; however, the lack of specifics of location, school or law enforcement agency in the complaint limits our ability to address specific concerns.”

The Education Department’s January report advocates that officers working in schools receive training on ways to create a school climate that is safe and supportive.

“The ideal position for a school resource officer is not to be there to arrest kids and bring charges, but to provide some law enforcement education to the kids to help them make better decisions,” says Hutton of the principals’ association.

Mo Canady, a retired Hoover, Alabama, police officer who supervised a 12-person school resource officers unit, agrees. He leads the National Association of School Resource Officers and would like to see school administrators trained alongside the group’s members. That rarely happens, Canady says. When he hears of situations where officers in schools lead to more arrests, he assumes that the officers have not been properly trained.

“The goal is to minimize arrests,” he says, adding that special education law should be a significant part of a school resource officer’s training.

“If an officer has a sense of how a child with ADHD, for instance, would respond,” Canady says, “that would be really meaningful in terms of how the officer engages with the child.”

He supports the Education Department guidelines but questioned data regarding suspension and expulsions increasing. Canady mentions a 2011 Justice Department study, Juvenile Offenders and Victims: National Report Series (PDF). It found that, overall, juvenile arrests between 2002 and 2011 fell by 31 percent.

“I think there probably are some places where a lot of kids are being arrested at some schools,” he says. “I’m not trying to ignore that, but I’m not sure that it’s as widespread as critics [of school resource officers] suggest.”

A policy letter U.S. Education Secretary Arne Duncan wrote about his agency’s report describes the situation as a “widespread overuse of suspensions and expulsions,” which has tremendous costs. “Students who are suspended or expelled from school may be unsupervised during daytime hours and cannot benefit from great teaching, positive peer interactions and adult mentorship offered in class and in school,” the letter reads.

The Education Department mentions restorative justice as an alternative to suspensions and expulsions. A process with nonpunitive disciplinary responses focused on repairing harm done to relationships and people, it also engages all parties involved in the behavior and considers accountability.

A “peace room” to promote restorative justice was created a few years ago at Chicago’s Stephen F. Gale Math & Science Academy. A public school in the city’s Rogers Park neighborhood, 96 percent of the students are considered low income, and 17 percent of the pupils receive special education services. Of the student body, 63 percent is black.

The peace room was intended as an alternative to suspension and expulsion, says Mariame Kaba, founding director of Project Nia. A grassroots organization with a long-term vision of ending youth incarceration in Illinois, the group recruited volunteers who received restorative justice training and worked with students in the peace room.

Teachers and administrators could recommend students visit the peace room; attendance was voluntary. Also, students on their own could visit the peace room after school.

“We saw the beginnings of very tiny, small steps where folks wanted to do different by young people, and young people were beginning to think about when they did something that needed to be addressed,” Kaba says. “By the end of the time we were there, there were young people wanting to come to the peace room, and some teachers wanted to punish them by not letting them come to the peace room.” Denying someone access to a peace room for punishment is not part of the restorative justice process, says Kaba, whose group stopped running the school’s peace room in 2011.

“Restorative justice is not portable. It’s a process and a way of being,” she adds. “It involves really transforming the culture of a place, building relationships and having those relationships that lead to the ability to trust each other and hold each other accountable.”

In June, Chicago Public Schools announced it was revising its discipline code, with plans to prohibit almost all suspensions for children in preschool through the second grade. Also, the district reportedly will end mandatory expulsions for preschool through fifth-grade students, except for weapons infractions.

Bruce Carrier, the superintendent of a South Dakota school district under a consent decree that stemmed from a civil rights lawsuit, says he’s not familiar with restorative justice. The lawsuit alleged that the district’s discipline policies intended to “push Native American children” out of the school district and into the county’s juvenile and criminal justice systems. According to the Civil Rights Data Collection, the district had 689 students in 2011, of which 32 percent were Native American and 67 percent were white. In addition, 45 percent of the student body qualified for free or reduced-cost lunch.

According to the 2006 complaint, more than one-third of the district’s Native American students were suspended during the school year, and one out of seven were arrested and prosecuted for violating school discipline rules.

Five years after the consent decree was entered, Carrier arrived at Winner School District. Since then, the parties have agreed to a modification, including the goal of raising the Native American graduation rate to 55 percent. Also, the agreement set the goal of lowering in-school or out-of-school suspension for Native American students to a maximum of 40 for the school year. Carrier expects that the decree will be lifted in 2017.

“When I came here there was a lot of frustration between the parties,” he says. “I just took the bull by the horns and set up a punch list, making sure that everything that needed to get done got done.”

Carrier seems to have support from the American Civil Liberties Union, which represents the plaintiffs in Antoine v. Winner School District.

“It used to be the case that every fight between Native Americans and white students was classified as an assault, and the police were called to arrest middle school students at school,” says Courtney A. Bowie, a senior staff attorney with the ACLU’s racial justice program. “The current superintendent has sent the message that he’s not going to permit that, so police referrals have gone down to zero.”

A former basketball coach who started his teaching career in 1973, Carrier also made policy changes not listed in the consent decree, like bringing back a bus route for a Native American housing unit 3 miles from school. South Dakota law mandates bus service only for homes 5 or more miles from school, and the route was previously removed due to perceived bus discipline problems.

“I told our school board that I’m not going to punish my kids because their parents might not have a car or no gas in the car, or they’re working and can’t get their kids to school,” says Carrier, adding that the route now picks up 49 kids.

He also had classroom management concerns.

“They were stupid discipline problems because teachers were afraid to go after the kids after the consent decree,” Carrier says, mentioning things like students falling asleep in class.

What does Carrier advise teachers to do when a student falls asleep in class?

“Wake them up,” he says. “If they lay their head back down, they need to go to the office and we’ll deal with it.”

He mentions a sixth-grader sent to the office for sleeping in class.

“I could see that he was just shot. I didn’t give him any discipline,” says Carrier, who let the boy sleep in the main office. After a few hours, he woke the child up and took him back to class.

Carrier tries to limit out-of-school suspensions and expulsions, mostly for misbehavior that causes significant safety concerns or repeat disrespectful behavior toward teachers. He prefers in-school suspension, as well as before-school, lunchtime and after-school detention, when necessary.

According to the Education Department’s report, out-of-school suspensions and expulsions should only be used as a “last resort,” and reserved for “serious infractions.”

Carrier admits that he has not read the 27-page report. “I don’t need the feds telling me how to run my school or discipline students. I know what we need to do, rather than have a pamphlet or something that tells me what needs to be done.”

Even so, some say that the report demonstrates a tipping point away from zero tolerance school discipline.

“I firmly believe that the more we can bring research into this debate about what works and what doesn’t, at the end of the day most administrators will listen to research and reason—and see the benefits,” Losen says.

Parents and their children also may play a large role in demanding change. As evidence, some point to the Los Angeles Unified School District’s elected school board that last year banned suspending students for “willful defiance.” According to California attorney Laura Faer of the Los Angeles-based pro bono firm Public Counsel, that could include wearing a hat in class, forgetting a pencil or holding hands with someone of the same gender.

This year the San Francisco Unified School Board voted to eliminate willful defiance as a reason to suspend a student. It’s been reported that between 2012 and 2013, acts of willful defiance like those noted by Faer made up 43 percent of California suspensions.

Others aren’t so sure that change will come easily.

Jennifer A. Riley-Collins, executive director of the Mississippi ACLU, mentions that last year her state introduced legislation about school resource officers with language similar to that in the Department of Education report. The report states that the officers should focus on protecting a school’s physical safety, develop positive relationships with staff and students, and avoid involvement with routine discipline matters.

“A high official from the Mississippi Department of Education worked very hard against us not to have that language in state law,” Riley-Collins says. When the Department of Education released the guidelines in January, her office alerted Mississippi legislators.

“I said, ‘Here’s the facts. Now it’s not just the ACLU of Mississippi saying this. It’s the Department of Education and Secretary Arne Duncan saying that you guys should do this.’ “

This article originally appeared in the August 2014 issue of the ABA Journal with this headline: “Less Than Zero: Schools are rethinking zero tolerance policies and questioning whether the discipline is really effective.”

Clarification

The print and the initial online version of “Less Than Zero,” August, should have said that Mariame Kaba’s group, Project Nia, stopped running the peace room at Chicago’s Stephen F. Gale Math & Science Academy in 2011.